Gatto v Australian Broadcasting Corporation & Ors - [2022] HCATrans 197

[2022] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M29 of 2022

B e t w e e n -
DOMENIC GATTO
Applicant
and
AUSTRALIAN BROADCASTING CORPORATION
First Respondent
NINO BUCCI
Second Respondent
SARAH FARNSWORTH
Third Respondent
Application for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 NOVEMBER 2022, AT 10.30 AM

____________________

GORDON J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR G.O’L. REYNOLDS, SC appears with MR D.A. WARD and MR C.C. PORTER for the applicant. (instructed by Lennon Lawyers)

MR M.J. COLLINS, KC appears with MR S. MUKERJEA for the respondents. (instructed by ABC Legal)

GORDON J: Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, I need an extension of time. We were a day late. I have been told that that is not opposed.

GORDON J: You have that leave, Mr Reynolds.

MR REYNOLDS: Thank you, your Honour. Your Honours, this case raises four questions of law relating to the law of defamation. I submit each is important – indeed, of critical importance in that area of the law. Each arises in all Australian jurisdictions. On three out of the four of those points, there is no decision of this Court. On three out of the four, there is a divergence between intermediate Courts of Appeal. And all four questions of law relate to the critical question of law, which arises in every defamation case; namely, how the tribunal of fact determines if a publication conveys defamatory imputations.

In addition to those four issues of law, we submit that the decision of the Victorian Court of Appeal rejecting all six imputations is, with all due respect, a grave and manifest injustice warranting visitation. All six imputations were, we submit, clearly conveyed. And again, with respect, the Victorian Court of Appeal conducted no adequate examination of the facts; dealt with all six imputations in under two pages; provided no adequate basis for rejecting the meanings, and with respect, the reasoning is exiguous.

Can I deal with the first issue of law which arises, which relates to what has been called the “single meaning rule”, which has adopted – if I can take your Honours to page 71 of the application book, at paragraph 41 of the judgment, where it stated in the last four lines that:

The question . . . is what is the single or dominant meaning which the trier of fact believes was actually conveyed –

which they refer to as the “single meaning rule”. If your Honours go to paragraph 44 on the following page, the word “select” is used in the first line. So, the trier of fact has to select the dominant meaning, and only one meaning. We say there are two important questions here. First of all: is there such a rule? We submit that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] HCATrans 197
Decision Date

CaseChat Overview and Summary

Gleeson J of the Federal Court of Australia considered a dispute between the applicant, Mr Gatto, and the respondents, the Australian Broadcasting Corporation and others. The proceedings concerned allegations of defamation arising from a television program broadcast by the ABC.

The central legal issue before the court was whether the television program contained defamatory imputations concerning Mr Gatto. Specifically, the court had to determine if the broadcast conveyed meanings that would tend to lower Mr Gatto in the estimation of right-thinking members of society, expose him to hatred, ridicule, or contempt, or cause him to be shunned or avoided.

Gleeson J analysed the content of the television program and the context in which it was broadcast. The judge applied the established legal principles of defamation, including the test for identifying defamatory imputations and the concept of the ordinary reasonable viewer. The court considered the natural and ordinary meaning of the words and images used, as well as any implied meanings that might be conveyed. The judge found that certain imputations conveyed by the program were defamatory of Mr Gatto.

Orders